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Employment Agreement

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Title:

Employment Agreement

Entities:

Amgen, Inc.

Date:

2002

Size:

Preview shows 14KB of 47KB total

Price:

$46

ID:

#352049

► Employment ► Employment Agreements
► Biotech & Drugs ► Biological Products

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EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (this Agreement), made and entered into as of the Effective Date (as hereinafter defined), between Amgen Inc., a Delaware corporation (the Company), and Edward V. Fritzky (the Executive);

WHEREAS, the Executive is employed by Immunex Corporation (Immunex Corporation) as Chief Executive Officer and the Executive possesses intimate knowledge of the business and affairs of Immunex Corporation and has acquired certain confidential information and data with respect to Immunex Corporation;

WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of December 16, 2001 by among the Company, Immunex Corporation and a subsidiary of the Company (Merger Sub) (the Merger Agreement), Merger Sub will merge with and into Immunex Corporation (the Merger);

WHEREAS, the Company has determined that it is of the utmost importance to assure itself of retaining the Executives services during the critical period following the Merger to assist in the integration of the operations of the Company and Immunex Corporation;

WHEREAS, the Company desires to secure the continued employment of the Executive in accordance herewith, effective upon the date of the consummation of the Merger pursuant to the Merger Agreement (the Effective Date);

WHEREAS, the Executive is a participant in the Immunex Corporation Leadership Continuity Plan, dated as of October 25, 2001 (the LCP);

WHEREAS, the Executive would be entitled to receive certain severance payments and benefits pursuant to the LCP upon termination of employment with Immunex Corporation following the Effective Date;

WHEREAS, the Executive intends to forego the right to receive such payments and benefits by entering into this Agreement;

WHEREAS, the parties now desire to enter into an agreement setting forth the terms and conditions of the employment relationship of the Executive and the Company;

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, it is hereby agreed as follows:

1. Definitions.

(a) Board shall mean the Board of Directors of the Company.

(b) Cause shall mean (i) the willful and continued failure by the Executive to substantially perform the Executives duties with the Company (other than any such failure resulting from the Executives incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of Termination for Good Reason by the Executive pursuant to Section 14 hereof) that has not been cured within thirty (30) days after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed the Executives duties, (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company or its subsidiaries, monetarily or otherwise, or (iii) a material breach by the Executive of the terms of this Agreement. For purposes of clauses (i) and (ii) of this definition, (x) no act, or failure to act, on the Executives part shall be deemed willful unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executives act, or failure to act, was in the best interest of the Company and (y) in the event of a dispute concerning the application of this provision, no claim by the Company that Cause exists shall be given effect unless the Company establishes to the Board by clear and convincing evidence that Cause exists.

(d) Good Reason shall mean any material breach of this Agreement by the Company that has not been cured within thirty (30) days after a written demand for cure is delivered to the Company by the Executive, including without limitation:

(i) the removal of the Executive from his position as a member of the Board except in the event that such removal relates to the termination by the Company of the Executives employment for Cause or by reason of disability pursuant to Section 13 hereof; or

(ii) failure by the Company to obtain the assumption of this Agreement as contemplated by Section 19(a) hereof.

(e) Termination Date shall mean (i) if the Executives employment is terminated by the Executives death, the date of death; (ii) if the Executives employment is terminated for purposes of this Agreement by reason of disability pursuant to Section 13 hereof, the earlier of thirty (30) days after the Notice of Termination is given or one (1) day prior to the end of the Employment Period; (iii) if the Executives employment is terminated by the Executive voluntarily (other than for Good Reason), the date the Notice of Termination is given; (iv) if the Executives employment is terminated by the Company, whether or not for Cause, (other than by reason of disability pursuant to Section 13 hereof) or by

the Executive for Good Reason, the earlier of thirty (30) days after the Notice of Termination is given or one (1) day prior to the end of the Employment Period; and (v) if the Executives employment is not terminated prior to the end of the Employment Period, the date following the last day of the Employment Period.

2. Employment; Employment Period.

(a) On the Effective Date, the Company shall employ the Executive, and the Executive will be employed by the Company, in accordance with the terms of this Agreement for the period set forth below (the Employment Period). During the Employment Period, Executive shall be an employee of the Company for all purposes and will not be an independent contractor.

(b) The Employment Period shall commence as of the Effective Date and shall continue until the second anniversary of the Effective Date (that second anniversary shall be the last day of the Employment Period); provided, however, that if the Merger Agreement is terminated in accordance with its terms, then, at the time of such termination, this Agreement shall terminate and be of no force or effect. This Agreement shall be of no force and effect unless and until the Effective Date occurs.

(c) The Executive hereby waives any right to any severance benefit otherwise payable to the Executive pursuant to the LCP. In consideration for such waiver, on the Effective Date the Company shall pay to the Executive a cash lump sum payment equal to three times the sum of (i) the Executives base salary as in effect immediately prior to the Effective Date, (ii) the Executives target annual incentive compensation in effect immediately prior to the Effective Date, and (iii) the value of the contributions or the allocations made, as applicable, on behalf of the Executive to the Immunex Corporation 401(k) Savings Plan and the Immunex Corporation Nonqualified Deferred Compensation Plan in respect of the fiscal year ending immediately prior to the fiscal year in which the Effective Date occurs.

3. Duties.

(a) During the Employment Period, the Executive shall serve as a strategic advisor to the Company. At or prior to the Effective Time (as defined in the Merger Agreement), the Board shall take all action necessary so that, immediately following the Effective Time, the Executive shall be appointed to the Board. If at the Effective Time the Company has multiple classes of directors, the Company shall take all action reasonably necessary, subject to applicable law, to appoint Executive to the class of directors with the longest remaining term as of the Effective Time, provided that the Company shall not be required to request that an incumbent director of the Company switch classes. The Executive shall not be required to perform services hereunder for more than 20 hours per month. Subject to Section 1(b), it shall not be a violation of this Agreement for the Executive to pursue other interests, whether of a personal or professional nature, so long as in so doing he does not engage in a business which is competitive with the Companys business.

(b) The Executive shall report directly to the Chief Executive Officer of the Company and shall perform such strategic advisory services as are assigned to him by the Chief Executive Officer of the Company, provided that such services are consistent with the Executives background and experience.

4. Office Space and Support Services.

If during the Employment Period the Executive elects to perform services at rented offices, the Executive shall be reimbursed for rental payments for office space, subject to the limitation in the last sentence of this section. During the Employment Period, the Company shall reimburse the Executive for secretarial, communications and technology support services, subject to the limitation in the last sentence of this section. All expenses reimbursed to the Executive under this Section 4 shall not exceed $250,000 per year.

5. Compensation. During the Employment Period, the Executive shall be compensated as follows:

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